DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed 3/2/26 have been fully considered but they are not persuasive. The Applicant argues that the claimed system is not able to be done using a mental process. The Examiner respectfully disagrees. The system receives data, removes maternal R-peak, detects fetal peaks, creates test peak positions and aligns peaks. All of which are capable of being done by a clinician, physician or user with mental processing and pen and paper. It is further noted that the system determines an optimal match but fails to provide any useful and tangible output that controls a tangible system or provides a prophylaxis. Therefore the 101 rejections stand.
The Applicant further argues that the system of Sameni uses a different algorithmic framework than the current claims. The Examiner respectfully disagrees. It is first noted that the claims fail to claim a specific algorithm. The claims are directed toward a broad and generic process that only requires receiving data, removing maternal ECG r-peaks, detecting fetal peaks and aligning the peaks with test peaks for an optimal match. As disclosed in detail below and in the prior action, each and every limitation is taught by Sameni. Therefore, the rejections stand.
Regarding the 103 rejections, the Applicant argues that the claim depends from claim 6, which depends from claim 1 and therefore is not taught. The Examiner respectfully disagrees for the reasons above regarding claim 1. Therefore, the rejection of claim 7 stands.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1-27 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1- Claim 1
Claim 1 and dependent claims 2-16 are drawn to a system and thus meet the requirements for step 1.
Step 2a (prong 1) - Claim 1
Claims 1 recites the step of “detecting positions of both fetal peaks and noise peaks” Under the broadest reasonable interpretation, this step covers a concept capable of being performed in the human mind, and thus falls within the mental processes grouping of abstract ideas. Other than reciting the method is “computer-implemented” in the preamble, nothing in the claim precludes the step from practically being performed in the mind.
Accordingly, claim 1 recites an abstract idea.
Step 2a (prong 2) – Claim 1
The judicial exception is not integrated into a practical application. Claim 1 recites the additional elements of:
Receives the maternal ECG signal is insignificant extra-solution activity (i.e., data gathering),
Create a plurality of sets of test peak positions is insignificant extra-solution activity (i.e., data gathering/statistics), and
Algin each set of test peak positions with the detected positions of both the fetal and noise peaks is well-understood routine and conventional (i.e., gathering data/statistics MPEP 2106.05(d)(II)).
These steps do not integrate the abstract idea into a practical application because they are insignificant extra solution activity.
Step 2b- Claim 1
The additional elements when considered individually and in combination are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, providing a (detect positions of both fetal peaks and noise peaks) is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data). Further, receiving maternal ECG signal using an ECG subsystem is considered data gathering. It is noted that the first and second electrodes are recited at a high level of generality.
The additional elements that were considered insignificant extra solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine and conventional when considered individually and in combination with evidence provided. Specifically:
Receiving the maternal ECG signal of a user is well understood, routine, and conventional (i.e., receiving data MPEP 2106.05(d)(II)).
Preprocess the maternal ECG signal is well-understood routine and conventional (i.e., gathering data/statistics MPEP 2106.05(d)(II)).
Detecting positions of both fetal and noise peaks is considered to be well-understood, routine, and conventional (i.e., presenting data MPEP 2106.05(d)(II)).
Claim 1 is thus consider to be directed to an abstract idea without significantly more.
Claims 2-16 depend from claim 1. The type of data analyzed as stated in claim 3 is considered extra solution activity. The devices utilized to collect and process the data as stated in claims 2 and 4-7 are stated at a high level of generality in applicant’s specification (“processor, ECG electrodes, integrated circuits”) and are merely used as a tool to carry out the data gathering. Claims 10-16 are directed to the extra solution activity of statistics. Thus, the dependent claim do not change the overall analysis that claims 2-16 are also directed to an abstract idea.
Claims 17-26
Independent claim 17 is directed to a computer implemented method containing limitations similar to that for claim 1 and further includes a computer. Analyzing the computer of claim 17 under step 2a, prong 1, the computer is recited at a high level of generality and merely use the computer elements (the processor and memory) as a tool. When analyzed under step 2a, prong 2, the computer performs generic computer functions like storing and processing data. Further, when the analysis is extended to step 2b, the processor and memory are considered to use the computer elements as tools, MPEP 2106.05(d)(II). Thus, claim 17 is also considered to be patent ineligible subject matter. Dependent claims 18-26 are similar to dependent claims 2-16 and are rejected on the same grounds.
Claim 27
Independent claim 27 is directed to a computer implemented method containing limitations similar to that for claim 1 and further includes a computer. Analyzing the computer of claim 27 under step 2a, prong 1, the computer is recited at a high level of generality and merely use the computer elements (the processor and memory) as a tool. When analyzed under step 2a, prong 2, the computer performs generic computer functions like storing and processing data. Further, when the analysis is extended to step 2b, the processor and memory are considered to use the computer elements as tools, MPEP 2106.05(d)(II). Thus, claim 27 is also considered to be patent ineligible subject matter.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-6, 8-9 and 17-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sameni et al. (U.S. Pub. 2010/0137727 hereinafter “Sameni”).
Regarding claims 1 and 17, Sameni discloses a system for detecting fetal peaks in a maternal ECG signal (e.g. abstract), the system comprising: an ECG subsystem for collecting a maternal ECG signal that includes fetal peaks (e.g. 100); and a signal processing subsystem (e.g. ¶106) configured to: a) receives the maternal ECG signal (e.g. 702); b) preprocess the maternal ECG signal wherein preprocessing includes removal of mECG R-peaks to form a processed ECG signal that includes both fetal and noise peaks (e.g. 706); c) detect positions of both fetal peaks and noise peaks using a peak detection algorithm (e.g. 712, 714); d) create a plurality of sets of test peak positions wherein each set of test peak positions has its peak positions separated by an associated predetermined time period, the associated predetermined time period for each set being selected from a predetermined range of time period (e.g. ¶50); and e) align each set of test peak positions with detected positions of both fetal peaks and noise peaks to determine an optimal match with a subset of the detected positions of both fetal and noise peaks, the optimal match identify peaks corresponding to fetal peaks (e.g. ¶50).
Regarding claim 2, Sameni further discloses wherein the maternal ECG signal is digitized prior to processing (e.g. ¶106).
Regarding claim 3, Sameni further discloses wherein the signal processing subsystem includes a digital signal processor configured to preprocess the maternal ECG signal (e.g. ¶106).
Regarding claim 4, Sameni further discloses wherein the signal processing subsystem includes application specific integrated circuits configured to execute steps a) to e) (e.g. ¶106).
Regarding claim 5, Sameni further discloses wherein the signal processing subsystem includes a computer processor configured to execute steps a) to e) (e.g. ¶106).
Regarding claim 6, Sameni further discloses wherein the ECG subsystem includes 2 to 4 electrodes for collecting the maternal ECG signal, circuitry for storing and/or processing the maternal ECG signal, and an interface for communicating with a computing device (e.g. ¶423).
Regarding claims 8 and 18, Sameni further discloses wherein the maternal ECG signal is an abdominal ECG signal (e.g. ¶¶34-35).
Regarding claims 9 and 19, Sameni further discloses wherein positions of both fetal peaks and noise peaks using are stored as a vector of peaks Xk of dimension k'where k' is the number of peaks and k is an integer label from 1 to k' (e.g. ¶¶12, 45, 69, 76-90; claim 1).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sameni as applied to claims 1-6, 8-9 and 17-19 above, and further in view of Olejniczak et al. (U.S. Pat. 6,740,033 hereinafter “Olejniczak”).
Regarding claim 7, Sameni discloses the claimed invention except for the maternal ECG device having an antenna for transmitting the data. However, Olejniczak teaches that it is known to use an antenna and wireless circuitry as set forth in Column 3, ll. 42-50 to provide a means for wirelessly transmitting the data without the need for cumbersome wires. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Sameni, with an antenna as taught by Olejniczak, since such a modification would provide the predictable results of wirelessly transmitting the data without the need for cumbersome wires.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached Monday-Thursday 7:00AM-5:30PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REX R HOLMES/Primary Examiner, Art Unit 3796
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